This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).




In the Matter of:

Eugene Christopher Banks.

Filed July 6, 1999

Affirmed in part and remanded in part

Harten, Judge

Dakota County District Court

File No. P6-98-8535

Joe C. Dalager, Thuet, Pugh, Rogosheske & Atkins, Ltd., 833 Southview Boulevard, South St. Paul, MN 55075 (for appellant Banks)

James C. Backstrom, Dakota County Attorney, Kenneth A. Malvey, Brittany L. Shively, Assistant County Attorneys, Dakota County Judicial Center, 1560 Highway 55, Hastings, MN 55033 (for respondent petitioner)

Considered and decided by Harten, Presiding Judge, Klaphake, Judge, and Willis, Judge.


HARTEN, Judge.

Banks appeals his indeterminate commitment as a sexually dangerous person (SDP), raising evidentiary and sufficiency arguments as to whether he met the standards for commitment. He also challenges the constitutionality of the SDP act. Because there was clear and convincing admissible evidence that he met the standards for commitment and because the act is constitutional, we affirm in part and remand in part.


Beginning in April 1979, when appellant was nine and his sister was seven, appellant began to engage in sexual intercourse with her. Later, he threatened or slapped her if she resisted. This continued until September 1987, when his sister reported it to authorities. In the summer of 1984, a police report was filed accusing appellant, then 13, of forcing his five-year-old male cousin to suck on his penis while they were in the shower.

The court adjudicated appellant delinquent of first degree criminal sexual conduct for the assaults against his sister and ordered him to reside at out-of-home placements. Although given the opportunity to participate in sex offender treatment, appellant did not complete any of the programs. He was discharged from juvenile court authority in April 1990.

In July 1991, appellant befriended a twelve-year-old girl. After she drank two or three beers that he gave her, he followed her into the bathroom, locked the door, unzipped her pants and touched her vagina. In August 1991, police investigated the kidnapping and sexual assault of a five-year-old girl, who had been taken from her bedroom in the middle of the night from the same apartment complex in which appellant resided. Appellant pleaded guilty to second degree criminal sexual conduct for the assault against the twelve-year-old. As part of the plea agreement, the county dismissed the charge of kidnapping the five-year-old. A petition to commit appellant as an SDP was filed on July 8, 1998, shortly before his release date.

At the hearing, Dr. Roger Sweet, the court-appointed examiner, diagnosed appellant as having an antisocial personality disorder with narcissistic features. He recommended commitment as an SDP, testifying that appellant was highly likely to commit harmful sexual conduct in the future and is at high risk to reoffend sexually. Dr. James H. Gilbertson, the second court-appointed examiner, also diagnosed appellant with an antisocial personality disorder with narcissistic features. He was of the opinion that it was more likely than not that appellant would reoffend sexually.

The district court committed appellant to the Minnesota Sex Offender Program (MSOP) as an SDP. After a review hearing and testimony from the MSOP staff in support of the commitment, the court made appellant's commitment indeterminate.

Eugene Banks appeals.


The district court's factual findings will be affirmed unless clearly erroneous. Minn. R. Civ. P. 52.01; see In re Joelson, 385 N.W.2d 810, 811 (Minn. 1986). Whether the facts found by the district court satisfy the commitment requirements is a question of law that the appellate courts will review de novo. In re Linehan, 518 N.W.2d 609, 613 (Minn. 1994) (Linehan I). On issues of law, the appellate court need not defer to the district court. In re Stilinovich, 479 N.W.2d 731, 734 (Minn. App. 1992).

A petitioner must prove that the requirements for commitment as an SDP are met by clear and convincing evidence. Minn. Stat. § 253B.18, subd. 1 (1998); see Minn. Stat. § 253B.185, subd. 1 (1998) (stating provisions of section 253B.18 apply to SDP commitments). Commitment as an SDP first requires a "course of harmful sexual conduct." Minn. Stat. § 253B.02 subd. 18c(a)(1) (1998). Appellant contends that absent findings regarding his alleged sexual abuse of the two five-year-olds, which he asserts may not be considered because they were based on hearsay, the record does not show he engaged in a "course" of harmful sexual conduct.

The statute addresses behavior, not the number of convictions. See In re Monson, 478 N.W.2d 785, 789 (Minn. App. 1991) (holding habitual course of sexual misconduct required for psychopathic personality commitment met where multiple acts of sexual abuse of young boys occurred, although Monson had only one conviction for criminal sexual conduct). "Course" is defined as "a systematic or orderly succession; a sequence." The American Heritage Dictionary 430 (3d ed. 1992). Using this definition, and under the above caselaw, appellant's forceful sexual relations with his sister over a period of eight years and his 1991 sexual contact with the twelve-year-old met the standard.

Next, there must be evidence that the person engaged in "harmful sexual conduct." Minn. Stat. § 253B.02, subd. 18c(a)(1). This is defined as "sexual conduct that creates a substantial likelihood of serious physical or emotional harm to another." Id., subd. 7a(a) (1998). Conduct described in certain crimes, including first to fourth degree criminal sexual conduct, creates a rebuttable presumption that the victim is substantially likely to suffer such harm. Id., subd. 7a(b). The court found that the rebuttable presumption was met as a matter of law. It also made the specific finding that appellant's illegal sexual conduct caused serious emotional harm to his sister, the twelve-year-old girl, and the five-year-old girl. Appellant contends the district court was clearly erroneous because it did not have admissible evidence that he engaged in illegal sexual conduct with the five-year-old girl. It is unnecessary to reach this issue because appellant's actions caused the requisite likelihood of harm to his sister and the twelve-year-old.

The final disputed factor requires a showing that as a result of the course of harmful sexual conduct and the mental disorder, the person is "likely" to engage in acts of harmful sexual conduct. Minn. Stat. § 253B.02, subd. 18c(a)(3); see In re Linehan, 557 N.W.2d 171, 180 (Minn. 1996) (requiring that likelihood of future harm be "high" to meet clear and convincing standard), vacated & remanded, 118 S. Ct. 596 (1997), aff'd as modified on remand, ___ N.W.2d ___ (Minn. May 27, 1999) (Linehan II). The Minnesota Supreme Court has set out factors to consider in determining the likelihood of harm in a sexual psychopathic personality case. Linehan I, 518 N.W.2d at 614. The supreme court has applied this multi-factor test to the prediction of harm for an SDP case. See Linehan II, 557 N.W.2d at 189-91.

Both experts addressed the Linehan I factors and other relevant evidence. Dr. Sweet found that appellant was highly likely to reoffend sexually, but Dr. Gilbertson found that his risk of committing additional sexual offenses was only "more probable that not." Appellant argues that because neither expert diagnosed him with pedophilia or paraphilia, and because he was not considered a patterned sex offender or a sexual predator, there was insufficient evidence to show he met this factor. To the contrary, Dr. Sweet testified extensively as to various factors indicating appellant was highly likely to cause harm by committing sexual offenses in the future. Faced with conflicting expert opinions, the district court may rely on one expert opinion over the other. See Joelson, 385 N.W.2d at 811 (holding court's evaluation of expert opinion testimony of particular significance). Unanimity of expert opinions is not a legal requirement.

In addition, appellant argues that Dr. Sweet's opinion was based on an assumption that appellant kidnapped and sexually assaulted the five-year-old. Arguing that this was based on hearsay, he contends the court thus could not rely on Dr. Sweet's opinion. But the district court must make an independent determination of whether the factors are met as a matter of law. Linehan I, 518 N.W.2d at 613. Whether a person meets the standards for commitment is a "mixed question of legal and medical judgment." In re Moll, 347 N.W.2d 67, 70 (Minn. App. 1984). But it is the trial court, not the medical expert, who must decide. Id. Based on the totality of the admissible evidence, the district court had clear and convincing evidence from which to conclude appellant was highly likely to reoffend sexually in the future.

In another argument, appellant contends that because the evidence from the initial hearing did not prove that he sexually abused the five-year-old, the inclusion of these findings in the review report prepared by MSOP is clearly erroneous. As discussed above, however, the factors for commitment are met even without these factual findings, so their inclusion in a report does not affect the outcome of the commitment. While appellant also complains that these findings may be used against him in the future if he continues to "deny" them at MSOP, this is not relevant to whether the commitment is proper.

Finally, appellant challenges the constitutionality of the SDP act. The Minnesota Supreme Court recently upheld the constitutionality of the SDP act as clarified. In re Linehan, ___ N.W.2d ___, 1999 WL 335788 (Minn. May 27, 1999). The commitment act now is applicable to those sexually dangerous persons "whose present disorder or dysfunction does not allow them to adequately control their sexual impulses * * *." Id. at ___, 1999 WL 335788, at *19. Because there are no district court findings on the lack of control, we remand for a determination of whether appellant meets the clarified standard for commitment as an SDP.

Affirmed in part and remanded in part.